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Governor Has Power to Withhold Documents from Public, Rules Washington's High Court

October 18, 2013

Washington state’s governor is allowed to claim “executive privilege” as a reason to withhold documents from the public even though that exemption isn’t among the hundreds listed in state law, the state Supreme Court ruled Thursday.

In an 8-1 decision, justices said the governor’s office has an inherent privilege as a result of the constitutional separation of powers.

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“The executive communications privilege plays a critical part in preserving the integrity of the executive branch,” wrote Justice Mary Fairhurst in the majority opinion. “Courts have widely recognized that the chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions.”

Justices did provide some qualifications in their decision, saying the privilege applies only to communications made to inform policy choices, although it is largely left up to the governor’s office to privately interpret what documents would fall into that category. The court also said a person requesting public records can argue that the need for the material outweighs the public interests served by protecting the communication.

“The privilege does not exist to shroud all conversations involving the governor in secrecy and place them beyond the reach of public scrutiny,” Fairhurst wrote.

In the only dissenting opinion, Justice James Johnson said the majority ruling essentially amended the state constitution and a voter-approved initiative that established public-disclosure law decades ago.

The governor of Oklahoma has the authority to withhold the release of certain documents from the public because of executive privilege, but that power is not absolute, the Oklahoma Supreme Court ruled Tuesday.
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